Majority
p. 372In the Matter of the Judicial Settlement of the First Account, and First Supplemental Account, of WILLIAM MITCHELL, as Sole Acting Executor of the Last Will and Testament of CLARISSA E. CURTIS, Deceased.
Headnote
Tenancy by the curtesy — marriage and birth of issue before the married women's acts — right of the husband to the wife’s real property subsequently acquired — to the wife’s personal property — equitable conversion — contribution■ — “proceeds of a sale ” means the net proceeds — taxes — a controversy under Gode of Givil Procedure, section 2812.A husband and wife were married and had issue prior lo the passage of the married women’s acts (chap. 200, Laws of 1848, as amended by chapter 875, Laws of 1819), and in 1856, through a third person, the husband conveyed certain real estate lo his wife.
Held, that the husband did not, by reason of the marriage and the birth of issue prior to 1848, acquire a vested right to a tenancy by the curtesy in such lands, which the wife could not defeat by a subsequent testamentary disposition thereof
That property acquired by the wife subsequent to the marriage was subject to any change, as to its disposition on her death, which the legislature might direct.
That the husband was entitled to the personal property of the wife acquired before the passage of the married women’s acts.
The will of the wife, which related lo both real and personal estate, described a piece of real estate, and stated that in the event of its sale during her lifetime, or of a sale after her death, “ then after such sale and from the proceeds thereof” she gave an annuity to her husband. Bequests to other persons were also made “ from the proceeds of the sale,” and a power of sale was given to her executors.
Held, that there was an equitable conversion of the real estate into personalty.
The daughters were the principal beneficiaries under the will, which contained general and specific gifts, one of the latter being of the real estate upon the proceeds of which was charged the annuity to the husband.
Held, that the taxes upon this real estate, whether accruing before or after the death of the testatrix, should be paid from the joroeeeds of its sale, and that the legacy to the daughters was not obliged to contribute to the payment thereof.
The “proceeds” of a sale are ordinarily the amount thereof after deducting the expenses, including taxes.
In determining whether a bequest is general or specific tlie intention of the testator, as deduced from the whole will, must govern.
A few weeks after leasing a house for a year the testatrix died, and her daughters continued to occupy it until the end of the term. The landlord assigned his claim for rent to one of the daughters, who presented it to the executor for payment. The executor disputed it.
Held, that the daughter was entitled to payment, and that the executor had no right, under section 2812 of the Code of Civil Procedure, to retain a sum to meet it, as being “a controversy which arises respecting the right of a party to share in the money or other personal property to be paid, distributed or delivered over.”
p. 373
Appeal by Clara Isabelle Curtis, as tlie assignee of tlie claim of Merritt Merwin against tlie estate of Clarissa E. Curtis, deceased, for rent of a liouse at Bridgeport, occupied by tlie decedent in her lifetime, from tlie following portions of tlie decree of distribution, entered in tlie above-entitled proceeding in the Surrogate’s Court of the county of New York on the 2d day of March, 1891, after a reference had been made to William P. S. Melvin, in whose report[1] the facts fully appear:
First. From the following portion of said decree: “And it appearing that Clara Isabelle Curtis, as assignee of Merritt Merwin, claims
p. 374
that the sum of four hundred and twenty dollars, with interest from the 9th day of August, 1887, is due to her from the estate of the testatrix for the rent of the house No. 86 South avenue, Bridgeport, Connecticut, and that the executor claims that there should be deducted from said sum of four hundred and twenty dollars and interest the amount of the rent of said premises which accrued between the 3d day of November, 1886, and the 16th day of October, 1887.
“ And it further appearing that said deductions will amount, with
p. 375
costs, to more than said- sum of four hundred and twenty dollars, and interest;
“ It is further ordered, adjudged and decreed that said executor shall not pay said sum of four hundred and twenty dollars and interest to said Clara Isabelle Curtis, but that he reserve from the personal property bequeathed by the fourth clause of said will the sum of live hundred dollars to protect the estate in the event that it should be determined in an appropriate tribunal that they, said Clara Isabelle Curtis and Julia Frances Munson, are liable for
p. 376
a. proportionate part of the rent of said house, No. 86 South avenue, Bridgeport, Connecticut, as aforesaid,” said appellant claiming that said decree should have ordered, adjudged and decreed that said claim of Merritt Merwin should be paid to her as his assignee by the executor out of the personal estate of said testatrix, and not retained by him as therein ordered.
Second. “ From all other portions, parts and provisions of said decree which are inconsistent with the payment of the claim of this appellant as assignee of said Merwin to her by said executor.”
p. 377
Gortlandt Irving, for tlie executor, "William Mitchell.
E. A. S. Man, for Clara Isabelle Curtis and Julia Frances Munson; also for Clara Isabelle Curtis, assignee.
William. Fullerton, for Janies L. Curtis.
We agree with tlie learned referee in the conclusion arrived at .as to the main question presented in this matter, namely, that of
p. 378
equitable conversion. Tliis question was elaborately considered by tlie learned referee, and nothing need be added to his able and convincing opinion on that head. The report in this particular was confirmed by the learned surrogate, and an opinion filed expressing full concurrence with tlie referee’s views. Subsequently, however, the learned surrogate decreed that the taxes and assessments which accrued against the real estate between the death of the testatrix and the date of the sale should not be paid out of the jiroceeds of such sale, but should be paid out of the income to be
p. 379
derived from tlie investment of these proceeds. This ruling, it seems to ns, was not in harmony with his previous decision confirming the report of the referee. By that report and the decision confirming it, the taxes and assessments which accrued upon the-property prior to the death of the testatrix were directed to be paid out of the proceeds' of the realty. This was upon the distinct ground that, in order to carry out the provisions of the will and the-intentions of the testatrix, an equitable conversion of the real estate into personalty for all the purposes of the will must be implied, and
p. 380
that sucli equitable conversion was thereby effected. If the reasoning which led to this conclusion was correct, and we think the referee has demonstrated its correctness, then all the liens upon the property, whether accruing before or after the death of the testatrix, should be paid out of the proceeds of the sale. The real estate in question was vacant land, and no income was derived from it between the death of the testatrix and the time of the sale. The oestui que trust did not, therefore, benefit, in the least from this property while the liens in question continued to accrue. And it
p. 381
was clearly the net proceeds of the sale, after paying all existing incumbrances — that is, existing at the time of such, sale — which the testatrix intended by the iiftli clause of her will to divide into eight equal portions.
The reasoning with regard to the liens existing when the testatrix died applies equally to those which accrued down to the date of the sale. We think that the decree on this head should be affirmed on the executor’s appeal, and reversed on the appeal of Clara Isabelle Curtis and Julia Frances Munson.
p. 382
With regard to Mr. Curtis’ appeal, we concur in the result -arrived at by the learned surrogate, and also with the referee in the .-.general discussion of the married women’s acts of 1848 and 1849.
As to the rent of the Bridgeport house we differ with both the •learned referee and the learned surrogate. That rent was due to the landlord, and he assigned his claim therefor to Clara Isabelle Curtis. By this assignment Miss Curtis became entitled to payment quite the same as the landlord would have been had the assignment not been made. The estate had no claim against Miss Curtis which
p. 383
could bo set off against the debt for rent thus assigned. Whatever .claim the estate had was against Miss Curtis and her sister Mrs. Munson, and even that was disputed. The remedy of the executor was by action against Miss Curtis and Mrs. Munson, and he was not entitled to reserve $500, or any other sum, from the personalty payable under the will, to himself as trustee, or from the income ultimately coming to the beneficiaries. Section 2812 of the Code of Civil Procedure is inapplicable to the facts under consideration. There was here no claim in controversy respecting
p. 384
tlie right of any person to share in the money to be distributed. The decree in this respect should, therefore, be reversed, and the executor required, without reservation, to pay Miss Curtis the amount due for the rent in question, with interest. It should also be reversed in the particular already pointed out, and the executor required to pay all liens, assessments and interests out of the proceeds of the realty.
In all other respects the decree should be affirmed, with costs to
p. 385
the executor, and to Miss Curtis and Mrs. Munson, jointly, payable out of the fund.
PatteksoN, J., concurred.
Decree affirmed (with the exceptions stated in opinion), with costs to the executor, and to Miss Curtis and Mrs. Munson, jointly, payable out of the fund.